[Federal Register Volume 77, Number 29 (Monday, February 13, 2012)]
[Proposed Rules]
[Pages 7562-7564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3265]



Federal Motor Carrier Safety Administration

49 CFR Parts 385, 390, and 395

[Docket No. FMCSA-2010-0167]
RIN 2126-AB20

Electronic On-Board Recorders and Hours of Service Supporting 

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of intent.


SUMMARY: FMCSA announces its intent to move forward with the Electronic 
On-Board Recorders and Hours of Service Supporting Documents rulemaking 
(EOBR 2) by preparing a Supplemental Notice of Proposed Rulemaking 
(SNPRM). To augment the Agency's efforts to obtain comprehensive data 
to support this SNPRM, FMCSA plans to do the following: hold listening 
sessions on the issue of driver harassment; task the Motor Carrier 
Safety Advisory Committee (MCSAC) to assist in developing material to 
support this

[[Page 7563]]

rulemaking, including technical specifications for EOBRs and their 
potential to be used to harass drivers; and conduct research by 
surveying drivers, carriers, and vendors regarding harassment issues.

ADDRESSES: Comments and material received from the public as well as 
documents mentioned in this notice are available for inspection or 
copying in the docket, Docket No. FMCSA-2010-0167, and at the Docket 
Management Facility, U.S. Department of Transportation, Ground floor, 
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 
a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and 
Roadside Operations Division, Office of Bus and Truck Standards and 
Operations, Federal Motor Carrier Safety Administration, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001 or by telephone at (202) 


Regulatory Background

    The following discussion summarizes the recent regulatory history 
of the agency's EOBR initiatives.\1\

    \1\ For a more detailed history of the program containing the 
initial regulatory actions by the agency see EOBR 1, discussed below 
in this section (75 FR 17208).


    On April 5, 2010, the Agency issued a final rule (75 FR 17208) that 
provided new technical requirements for EOBRs. The EOBR final rule also 
required the limited, remedial use of EOBRs by any motor carrier found, 
during a single compliance review, to have a 10 percent violation rate 
for any hours-of-service (HOS) regulation listed in a new Appendix C of 
49 CFR part 385. The final rule required EOBRs on all of the motor 
carrier's commercial motor vehicles (CMVs) for a period of 2 years. The 
compliance date for the final rule was June 4, 2012.
    The Owner-Operator Independent Drivers Association (OOIDA) 
challenged the final rule in the United States Court of Appeals for the 
Seventh Circuit. OOIDA raised several concerns relating to EOBRs and 
their potential use for driver harassment. On August 26, 2011, the 
Court vacated the entire final rule. Owner-Operator Indep. Drivers 
Ass'n et al. v. Fed. Motor Carrier Safety Admin., 656 F.3d. 580 (7th 
Cir. 2011). The Court held that, contrary to statutory requirements, 
the Agency failed to address the issue of driver harassment, including 
how EOBRs could potentially be used to harass drivers and ways to 
ensure that EOBRs were not used to harass drivers. The basis for the 
decision was FMCSA's failure to directly address a requirement in 49 
U.S.C. 31137(a) which reads as follows:

    USE OF MONITORING DEVICES. If the Secretary of Transportation 
prescribes a regulation about the use of monitoring devices on 
commercial motor vehicles to increase compliance by operators of the 
vehicles with hours of service regulations of the Secretary, the 
regulation shall ensure that the devices are not used to harass 
vehicle operators. However, the devices may be used to monitor 
productivity of the operators. (Emphasis added.)).

    The court's expectation about how the Agency should address 
harassment and productivity under the statutory directive included the 

    ``In addition, an adequate explanation that addresses the 
distinction between productivity and harassment must also describe 
what precisely it is that will prevent harassment from occurring. 
The Agency needs to consider what types of harassment already exist, 
how frequently and to what extent harassment happens, and how an 
electronic device capable of contemporaneous transmission of 
information to a motor carrier will guard against (or fail to guard 
against) harassment. A study of these problems with EOBRs already in 
use, and a comparison with carriers that do not use these devices, 
might be one obvious way to measure any effect that requiring EOBRs 
might have on driver harassment'' (Id. at 588-89).

    The Court also noted that the Agency had not estimated the safety 
benefits of EOBRs currently in use and how much EOBRs increased 
    As a result of the vacatur, carriers relying on electronic devices 
to monitor HOS compliance are currently governed by the Agency's 
previous rules regarding the use of automatic on-board recording 
devices (49 CFR 395.15). The requirements set forth in 49 CFR 395.15, 
were not affected by the Seventh Circuit's decision regarding the 
technical specifications set out in 49 CFR 395.16 in the EOBR 1 Final 


    On February 1, 2011, the Agency published a notice of proposed 
rulemaking (NPRM) that proposed to expand the scope of EOBR use to a 
broader population of motor carriers (EOBR 2) (76 FR 5537). The EOBR 2 
NPRM proposed that, within 3 years of the effective date of the final 
rule, all motor carriers currently required to maintain records of duty 
status (RODS) for HOS recordkeeping would be required to use EOBRs.
    Due to the pending EOBR 1 litigation, the Agency extended the EOBR 
2 public comment period and, in recognition of issues raised in oral 
argument before the Seventh Circuit, expressly invited comment on the 
issue of driver harassment. A notice published on March 10, 2011 (76 FR 
13121) extended the public comment period for the EOBR 2 NPRM to May 
23, 2011. On April 13, 2011, the Agency published a notice specifically 
inviting comments on the EOBR2 rulemaking to address harassment (76 FR 
20611). In light of the litigation challenging the Agency's treatment 
of driver harassment in EOBR 1, FMCSA wished to ensure that interested 
parties had a full opportunity to consider the harassment issue in the 
active EOBR 2 rulemaking.

Planned Activities


    Because the EOBR 2 rule relied on the technical specifications 
provided in EOBR 1, where this final rule was vacated, the Agency must 
again proposed and seek comment on new technical standards into the CFR 
before any final rule concerning use of an EOBR device is issued. These 
proposed technical standards would take into account the official MCSAC 
recommendations, as well as public comments.
    FMCSA takes this opportunity to declare its intention to proceed 
with the EOBR 2 rulemaking. The Agency is preparing an SNPRM to propose 
technical standards for an EOBR, address driver harassment issues, 
propose requirements for retaining HOS supporting documents, and 
provide clarification and request further comments on several of the 
proposals. Additionally, the Agency will hold public listening 
sessions; work with its Motor Carrier Safety Advisory Committee 
(MCSAC); and use driver, carrier, and vendor surveys to obtain all the 
stakeholder information needed to discuss issues involving driver 

Public Listening Sessions

    FMCSA will hold public listening sessions to discuss issues 
involving the driver harassment issue. The public will have an 
opportunity to speak about this issue and provide the Agency with 
information on how to address harassment. All public comments will be 
placed in the docket of this rulemaking. Details concerning the 
schedule and locations for the listening sessions, as well as 
procedural information for participants, will follow in a subsequent 
Federal Register notice.

[[Page 7564]]

Motor Carrier Safety Advisory Committee Task

    MCSAC is an advisory committee to FMCSA.
    In June 2011, a MCSAC subcommittee began work on Task 11-04 
(Electronic On-Board Recorders (EOBR) Communications Protocols, 
Security, Interfaces, and Display of Hours-of-Service Data During 
Driver/Vehicle Inspections and Safety Investigations). The subcommittee 
examined technical issues relating to the electronic transfer of HOS 
information from CMVs to law enforcement personnel at the roadside 
raised by the EOBR 1 final rule. The subcommittee met several times and 
made its final report to the full committee on December 5 and 6, 2011. 
On December 16, 2011, the full committee made an official 
recommendation to FMCSA.
    FMCSA will task MCSAC to make recommendations related to the EOBR2 
rulemaking. Details will follow in a subsequent Federal Register 
    More information about these MCSAC meetings, recommendations, and 
task orders can be found at http://mcsac.fmcsa.dot.gov/meeting.htm.


    Subject to Office of Management and Budget approval, FMCSA will 
initiate OMB-approved survey of drivers regarding harassment 
experiences and concerns and OMB-approved surveys for carriers and 
vendors regarding harassment. Details will follow in subsequent Federal 
Register notices.

EOBR 1 Final Rule Withdrawal

    Based on the Seventh Circuit's decision, the Agency plans to 
publish a final rule in the Federal Register announcing the removal of 
the regulatory text in 49 CFR parts 350, 385, 395, 396 adopted in EOBR 
1 and subsequently vacated by the Seventh Circuit decision. This will 
complete the actions required by the Court.

    Issued on: February 7, 2012.
Anne S. Ferro,
[FR Doc. 2012-3265 Filed 2-10-12; 8:45 am]